Employer E-mail Could Show FMLA Bias

November 1, 2011 (PLANSPONSOR.com) – A federal appellate court has determined that an employer’s reference of an employee’s Family and Medical Leave Act (FMLA) leave in an e-mail recommending his termination could be considered retaliation under the FMLA.

In its opinion, the 7th U.S. Circuit Court of Appeals noted that managers at the American Medical Association (AMA) had determined they would eliminate another employee’s position in response to the AMA’s request for departments to reduce costs as a result of the effects of the 2008 economic downturn. Following William Shaffer’s request for FMLA leave in anticipation of an upcoming surgery, the managers changed their minds and decided to eliminate Shaffer’s position instead.

The court said an e-mail explaining the change of mindset could lead a reasonable jury to conclude that Shaffer was terminated because of his request for leave. In the e-mail one manager told another that since the department was preparing for Shaffer’s absence due to leave already, eliminating his position would have no “immediate negative impact.”

In a previous discussion, the managers had said terminating the other employee made the most sense, as his responsibilities had already been decreased. They also discussed terminating Shaffer, but decided it would not be in the best interest of the AMA.

The AMA maintained that the change in decision was based on other reasons, including Shaffer’s high salary and the backup available for Shaffer’s duties within his staff. However, the court decided the content of the e-mail and the timing of the change in decision could lead a jury to find otherwise.

The appellate court reversed a lower court decision and remanded the case for further proceedings.